News

Court throws out case due to police error

Palo Alto police did not do 'due diligence,' judge says

A case in which a Palo Alto man was arrested on three felony drug and weapon charges was thrown out because Palo Alto police failed to do "due diligence," a Santa Clara County Superior Court judge ruled in January.

On April 23, 2009, Jerold Rob Reed Jr. was at his apartment at 657 Homer Ave. when police showed up at his door, allegedly looking for another man, Raymond Ernest Presta. Reed Jr., who is a convicted felon, told officers he was the only one at the apartment. One of the officers, who knew Reed, instructed him to exit the apartment. Police began an exploratory search for Presta, who was suspected in connection with a burglary, according to Lt. Sandra Brown.

No evidence of Presta was found. However, officers discovered nine marijuana plants in a courtyard, a .22-caliber handgun and a .22-caliber rifle stolen from Menlo Park situated next to the bed stand, ammunition and a homemade silencer.

Since Reed admitted he was the only resident at the apartment, he was arrested and booked on three felony charges.

But Reed's defense attorney, John Cahners, successfully argued in court that Palo Alto police were negligent because they did not thoroughly verify that Presta lived at the Homer Avenue address. Although Presta had resided there in the past, according to court documents, he had moved to 427 Alma St. a year earlier and had provided the Alma Street address at least six months prior to various authorities.

Presta provided the Alma address to a police officer after receiving a ticket, according to Brown.

Presta had also provided the Alma Street address when he was booked into San Mateo County jail on March 12, 2009, Cahners said.

But Presta's driver license listed Homer as his street address, and his probation officer and a neighbor on Homer told police he resided at the house.

Further complicating matters, his Department of Motor Vehicles record listed both the Homer and Alma Street addresses, police acknowledged.

Officers never searched the Alma residence, however, according to court records.

That lapse, Cahners argued, showed police negligence. Presta was incarcerated for more than a month before the Homer Avenue search, and police and the Santa Clara County probation department should have had that information, along with his new address, he said.

But police didn't know he was in jail because that information never got to his probation officer, Brown said. Palo Alto police followed the information given to them by the probation department, she said.

So officers acted on three pieces of information: an address on the DMV printout, the probation officer's information and an interview with a Homer Avenue neighbor a day before police searched the home.

The prosecution's case against Reed fell apart when Brian Vierra, a private investigator hired by Reed's attorney, testified he spoke with the Homer Avenue neighbor, Joe Periera. Periera told him police never asked about Presta and only about Reed, according to court documents.

Periera said if police had asked about Presta he would have told them the suspect had not lived at the residence for more than a year, Vierra testified.

Brown, however, said Periera had recanted his previous statements to police. She also defended the officers' conduct, saying they were still within their rights to search the property based on the probation officer's information.

"If Probation says he lives there that's enough authority to be in the house," she said.

Cahners stated in court papers the police should have searched databases to find out if Presta was in custody before searching the home.

Police can search Santa Clara County databases to see if a suspect is in jail but not records in other counties, such as San Mateo. Presta's probation officer was in Santa Clara County and also did not easily have information of his arrest in another county, according to Brown.

"The two counties don't necessarily talk to each other," she said.

But Cahners disagreed that the information system is to blame.

"Failure to spend a reasonable time using the information available to law enforcement to find the readily available information concerning Mr. Presta's whereabouts and true address, by itself, deprived the defendant (Reed) of his right to privacy and freedom from 'unreasonable' searches and seizures," he told the court.

Timothy Pitsker, a retired Santa Clara County deputy district attorney who prosecuted the case, said the district attorney's office does not plan to re-file charges against Reed.

"It was a close call, in my opinion. The judge could have found the officers in good faith."

About the danger that Reed poses, Pitsker said, "The guns were basically garbage. If they were mine I'd be afraid they would blow up in my face if I tried to fire them. The silencer wasn't really a silencer -- it was a wannabe silencer. The court gave the defense a break," he said.

Comments

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Posted by Bruce Li
a resident of Barron Park
on Mar 24, 2010 at 9:26 pm

Okay so this article pretty much states that in January, a Palo Alto resident, who had a handgun, stolen rifle, drugs, an illegal silencer and ammunition in his apartment got his charges dismissed on a technicality. He certainly appears guilty to me! Good job PAPD for taking the illegal guns, drugs, silencer and ammo out of his hands!

Posted by john
a resident of another community
on Mar 24, 2010 at 9:59 pm

this guy forgets to tell his probation officer that he moved and then it's supposed to be the cop's fault that they didn't know? does that sound absurd to anyone else? and the guy with the stolen gun wants us to feel sorry for him? he should consider himself lucky that he pulled one over on the judge. i hope this judge doesn't preside over cases in my area!

Posted by Tom S.
a resident of Downtown North
on Mar 24, 2010 at 10:30 pm

I think it's kinda neat.
In the fact that it's a good example of how our justice system really works.
I'm sure if the police or the DA really thought he was a dangerous individual. They would have argued the case more or the judge would have not let it slide the way it did.
The point is he had a good lawyer who used the law the just the right way.

It can always go both ways. Their are many cases where individuals get more then they even had coming to them. It's always some small detail that can easily be overlooked then used against them. We dont usually here about those cases because they dont get people all fired up like ones like this

Posted by wow
a resident of Embarcadero Oaks/Leland
on Mar 25, 2010 at 1:57 am

justice was served, i think the PAPD used the other guys name to search, which in all acounts they should have did their homework. this isnt the 1920's where the police department runs this town. i myslef found myself in a similar situation. This town does profile and will do anything to find something. Since they are being extremely over paid and their job is not busy at all, they resort to this..

the guy that was caught is scum, but PAPD knows protocal better than that, very shody police work..

Posted by l'awful
a resident of Downtown North
on Mar 25, 2010 at 8:41 am

Is Reed a good-for-nothing petty criminal? Oh, probably. Is the judge's ruling appropriate? Absolutely. Unless you think it's okay for the police to show up at someone's home and conduct a search based on flawed "facts." Next time, it could be your home. Fourth amendment, anyone?

Posted by frank
a resident of South of Midtown
on Mar 25, 2010 at 9:34 am

Hey Wow..they are both both white so your attempt to pull profiling into this won't work this time..You seem to know so much, either you have been in this line of work or are familiar with being on the other side of the law.

Posted by A Noun Ea Mus
a resident of Professorville
on Mar 25, 2010 at 10:30 am

Growing marijuana is pretty much benign in my view. People owning guns is par for the citizenry course, although if this released person was involved then a convicted felon is an exception.

But what really catches one's eye here is the silencer. Anyone who owns a silencer, unless a gun nut gone wild with collecting everything just to impress guests, is clearly entertaining using the guns for aggressive and deadly assault. Not just defense, not just robbery in which the perp hopes to only use the gun for intimidation.

I would hope that the police indeed keep a close eye on any released persons.

I find the comments by the DA (guns junk, "wannabe" silencer") to either be sour grapes or wishful thinking. The intent is obvious.

Posted by Enough!
a resident of Palo Alto Orchards
on Mar 25, 2010 at 11:06 am

And another thug has his day...congrats to the defense atty. Gee, it's not like he was representing an innocent. Thanks for letting another creep back on the streets. So comforting to know there is aways someone out there willing to assist in endangering the public.

Posted by Anon.
a resident of Crescent Park
on Mar 25, 2010 at 11:07 am

Who wants this guy out and about enough to bend and twist justice so much in this case. What a bunch of BS.

The gun was stolen.

Silencer? Hello ... serious criminal here or someone who is waiting for the right time to be a serious criminal.

It's just too bad he didn't make a move for his gun while the police were there.

The ramifications of the police having to verify these kinds of things in the field is really inconsistent with doing their jobs.

I don't care about the marijuana - it will eventually be legal as it should be, but I do care about the felon owning stolen guns and a silencer. Unbelievable. Is there an appeal on the prosecution side to this? Or what am I missing about this guy's rights?

Posted by Anon.
a resident of Crescent Park
on Mar 25, 2010 at 11:10 am

>> Unless you think it's okay for the police to show up at someone's home and conduct a search based on flawed "facts."

Interesting thought process ... so you admit it was his doorstep? Was he living there or not, and what if he was living nowhere ... does that mean anywhere he lays his felon head is sacred ground that cannot be searched by the police?

Posted by Anon.
a resident of Crescent Park
on Mar 25, 2010 at 11:38 am

Tom S. "I think it's kinda neat".

Maybe, I could argue with or against you on that one. Admittedly any
system of laws, or logic breaks down or does not have precedent or
needs to be able to bend without breaking ... but in some cases, and
maybe this case, the outcome makes a mockery of those searching for
fairness and justice.

What I hear you saying is that you trust the judges ... ie. you trust
authority to make the best judgement, despite the letter or intent of
the law to protect citizens and our rights. I'm sure you sleep more
soundly at night with that belief, and that's important, but when I
look at other actions of "authority" as it acts in our modern interpretation
of contemporary representative government, all around in all dimensions
I see massive mistakes, incompetence or corruption.

The article right next to this one about the development in the Palo
Alto Hills to me proves my point, not to mention the existence of the
Palo Alto Airport.

The fact that at any time we can look at the "error" in how our system
works and think it is not that much, it is kinda neat that we keep it
small and managable ... yet as any scientist knows and will tell you,
errors in a process accumulate and grow until it is out of control.

I don't know the guy in question, but I know I don't feel like doing nothing
about someone with stolen guns and a silencer is the best reaction of
the people of California in this case.

Posted by Questions
a resident of Evergreen Park
on Mar 25, 2010 at 12:04 pm

> officers discovered nine marijuana plants in a courtyard ..

When I first read this story, I thought that the defense attorney got this guy off on a technicality--which he did. However, the more I thought about it, and managed to find a couple of stories about the original arrest, it seems like the Palo Alto Police might have had a tip about the dope .. and used Presta as an excuse to visit/search the apartment.

The article suggests that Reed is a former felon. Why Presta was allowed to live with Reed isn't exactly clear. Was this sanctioned by the Parole Officer? No follow-up about whether the Parole Officer had ever visited, or planed any surprise visits.

> officers discovered .. a .22-caliber handgun and a .22-caliber
> rifle stolen from Menlo Park situated next to the bed stand,
> ammunition and a homemade silencer.

It's doubtful that the police realized that the .22 rifle was stolen at the time. However, more to the point is: as a former felon, what are Reed's rights to have, use, firearms? None of the articles seem to have looked into this matter. Was the weapons charge having a couple of low-powered firearms, or being a felon with firearms. (Shoddy reporting here.)

The matter of the neighbor claiming that the police were asking about Reed, but not Presta, then shouldn't the Police be probing the officer who claimed that he did talk about Presta with the neighbor? One of these tow is lying.

But what I interested in is .. what's next for this guy, Reed? Will the Police now be able to snoop around until that can get him on something?

There also have been no media interest in what Reed was doing with this Marijuana .. was it for personal consumption, or was it for resale?

With the headline of today's paper claiming that this marijuana question going up before the voters soon .. it would seem a shame to incarcerate someone for something that might soon be legal.

Posted by Anon.
a resident of Crescent Park
on Mar 25, 2010 at 2:44 pm

Reasonable questions, "Questions" ... but I don't even care if the guy was growing marijuana for personal use or for sale - it's such a petty thing, and as you say soon to be legal most likely, and already is for many.

I'm dismayed about the weapons, and I'd like to understand the thinking behind the officers and the judge in this. The silencer things really bodes bad. First, was it really a silencer, or was it some "aluminum tubes" or something that police claim was a silencer to make the guy appear ominous? I tend to believe the police, but that does not allow them to make absurd claims.

Who knows what a person like this is into, or up to, and it sure seems like no good to me. It would be nice if the real facts of the case were available on the web maybe even video of the trial if there was one. Just seems like there is a lot that can be distorted in something like this.

Like the case about the coach and the boys who hit his house with a soccer ball.

To my gut what I am reading around Palo Alto seldoms seems like justice.

Posted by Mayfield Child
a resident of Green Acres
on Mar 27, 2010 at 11:52 pm

"Live by the gun, die by the gun"..........ever hear that one?

He WILL shoot himself in the foot someday. 99.9 % guaranteed.

**********************************
Parole offices are really the culprits here ... more PO's are needed to keep the majority in check, which now IS NOT HAPPENING.
Too many case loads to handle..not enough "surprise" visits being made in timely manners.

Last time I heard of the PO visiting someone I know of, the visit was SO untimely that the PO found his caseload person dead in the bedroom......Tardy, as charged.